Ninth Circuit Revives Challenge to Zoning Law Aimed at Alameda
County Gun Stores

From Staff and
Wire Service Reports

The Second
Amendment may require heightened scrutiny of laws that restrict the ability to
buy guns, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The
panel reinstated a suit by three businessmen who claimed their equal protection
rights and the right to bear arms were abridged by Alameda County’s enforcement
of an ordinance barring gun stores from locating within 500 feet of a
residential zone.

“My
clients and I are gratified by the win and look forward to resolving the matter
favorably in the trial court so that they can open their establishment and
service their customers and clients in Alameda County,” Donald Kilmer, who
represented the plaintiffs, told Courthouse News Service in an email.

In
2010, John Teixeira, Steve Nobriga and Gary Gamaz filed a federal challenge to
the Alameda County Board of Supervisors’ decision revoking their permit to open
a shop called Valley Guns and Ammo in the Bay Area city of San Leandro.

The
entrepreneurs claim the board changed its zoning laws to block their
enterprise.

U.S.
District Judge William Orrick of the Northern District of California
dismissed the plaintiffs’ second amended complaint with prejudice in
September 2013, but the appellate panel partially reversed that decision and
found that the plaintiffs had standing to pursue their Second Amendment claims.
It said the equal protection claim was properly dismissed because the
plaintiffs did not show that a similarly situated business had been given more
favorable treatment.

Judge
Diarmuid O’Scannlain wrote:

“Our
forefathers recognized that the prohibition of commerce in firearms worked to
undermine the right to keep and to bear arms. If the right of the people to
keep and bear arms is to have any force, the people must have a right to
acquire the very firearms they are entitled to keep and to bear.”

He
added that “Alameda County has offered nothing to undermine our conclusion that
the right to purchase and to sell firearms is part and parcel of the
historically recognized right to keep and to bear arms.”

Orrick,
he said, should have required the county to provide some evidentiary showing
that gun stores increase crime around their locations or negatively impact the
aesthetics of a neighborhood. He also said that if the ordinance, as applied,
completely bans new guns stores, rather than merely regulating their location,
something more exacting than intermediate scrutiny would be warranted.

Judge
Carlos Bea concurred in the opinion, while Judge Barry Silverman dissented. The
district judge was correct in rejecting “a mundane zoning dispute dressed up as
a Second Amendment challenge,” Silverman argued.

“Even
assuming for the sake of discussion that merchants who want to sell guns
commercially have standing to assert the personal, individual rights of wholly
hypothetical would-be buyers,” the plaintiffs did not assert how the zoning
ordinance “impairs any actual person’s individual right to bear arms, the
dissenting jurist wrote.

“Conspicuously
missing from this lawsuit is any honest-to-God resident of Alameda County
complaining that he or she cannot lawfully buy a gun nearby,” Silverman added,
pointing out that the county contains “at least 10” lawful gun stores.

O’Scannlain
contended that “we doubt the dissent would afford challenges invoking other
fundamental rights such cursory review.” He said that a similar hypothetical
zoning ordinance applying not to gun stores but to bookstores, “would give us
great pause” even if Alameda County residents “could acquire their literature
at other establishments that, for whatever reason, had not been shuttered by
the law.”

He
added:

“Just
as we have a duty to treat with suspicion governmental encroachments on the
right of citizens to engage in political speech or to practice their religion,
we must exert equal diligence in ensuring that the right of the people to keep
and to bear arms is not undermined by hostile regulatory measures.”

An
Alameda County representative said in an email that the county will continue to
defend the zoning ordinance, either in the trial or appellate court.